Stanford Law School
"The executive Power shall be vested in a President of the United States of America." The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that "vest" connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about "vesting" for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of "vested rights."
This Article offers a close textual reading of the word "vesting" and an examination of its eighteenth-century usage and context, with the first survey of available dictionaries (from 1637 to 1846), colonial charters and state constitutions, the Constitutional Convention, and Ratification debates. Dictionaries defined "vest" in terms of basic landed property rights, without reference to exclusivity or indefeasibility, and rarely with any reference to offices or powers. Other legal documents and digital collections of the Founders' papers indicate a range of usage, from "fully vested" to "simply vested" to "partly vested," so that the word "vesting" by itself would signify less completeness. Meanwhile, words used in the Constitution or by the Framers to convey exclusivity or indefeasibility (for example, "all," "exclusive," "sole," "alone," or "indefeasible") are missing from the Executive Vesting Clause. The ordinary meaning of "vesting" was most likely a simple grant of powers without signifying the impermissibility of legislative conditions such as good-cause requirements for removals, undermining the unitary theory's originalist basis. On the other hand, the "all" in the Legislative Vesting Clause may be more legally meaningful for nondelegation.
Jed H. Shugerman,
Stanford Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3581
Draft of article available on SSRN